Big Content's attempt to make internet service provider (ISP) iiNet responsible for its customers' copyright infringements has been soundly defeated, but the battle won't end there.
Friday's High Court ruling in the so-called iiTrial was certainly a victory for the ISP, which now gets to recover some of its $9 million in legal costs.
But, as Dr Rebecca Giblin explains on this week's Patch Monday podcast, what it's not is blanket protection for ISPs against any future action by copyright holders. Nor is it proof that the internet "can't be regulated". Those views are simplistic.
"If any ISP is engaging in that dodgy sort of behaviour, where they're really giving a bit of a nudge and a wink to infringement, where they are supporting people in downloading infringing content, making it easier in some way, or really any kind of conduct that suggests infringement is perfectly OK, then I think that there's plenty of scope for them to be liable for authorisation," she said.
"But the take-home message from this judgment is that any ISP that's simply engaging in normal ISP-type activities is not going to be liable for their users' infringements just by virtue of doing that."
Neil Gane, executive director of the industry lobby group Australian Federation Against Copyright Theft (AFACT), reckons that the High Court's ruling is proof that the Copyright Act, as it stands, can't protect copyrighted content online.
"I think that that's actually simply incorrect," Giblin said.
"There is nothing stopping the content owners enforcing the extensive rights that they've got against the individuals that are doing the infringement. They can certainly go to court and get an order to find out who is behind a particular IP address, and they can sue them for infringement. There's nothing stopping them from doing that."
They just choose not to, because it's expensive, and, when they tried it in the past, it sometimes resulted in a public relations disaster.
Giblin, a copyright academic and geek from Monash University's law school, literally wrote the book on this subject. Code Wars: 10 Years of P2P Software Litigation was published in December 2011.
She puts the iiTrial into its historical context, and explain its ramifications. Along the way, she observes that consumers will no longer put up with heavy-handed actions by copyright holders — witness the SOPA/PIPA protests — and that new business models are developing, including peer-to-peer production and micro-patronage funding models through services like Kickstart.
Giblin also comments on the observation by American white collar crime expert Professor Stuart Green from Rutgers University Law School that copyright infringement is not theft, but something more like the crime of trespass.
To leave an audio comment on the program, Skype to stilgherrian, or phone Sydney 02 8011 3733.
Running time: 37 minutes, 08 seconds